Opinion issued October 1, 2009 In The Court of Appeals For The First District of Texas NO. 01-07-00973-CV LITZI NICHOLSON, Appellant V. MARY SHINN, M.D., Appellee On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 2006-27688 MEMORANDUM OPINION This is a summary judgment case that arises under the notice provision of the Medical Liability and Improvement Act, TEX. CIV. PRAC. & REM. CODE 74.051 (Vernon 2005) (MLIA). Appellant, Litzi Nicholson, brings this appeal to challenge
a traditional summary judgment rendered in favor of appellee, Mary Shinn, M.D. on Nicholson s medical malpractice claim. In two issues, Nicholson contends that (1) fact issues remain regarding Dr. Shinn s contention that Nicholson s claim is time barred and (2) time for discovery was inadequate. We affirm. Background Dr. Shinn performed breast-augmentation surgery on Nicholson in September 2003. When Nicholson was dissatisfied with the results, Dr. Shinn performed a second surgery on March 12, 2004. Nicholson reported to Dr. Shinn for postoperative care on March 17, 2004. On May 4, 2006, Nicholson filed her original petition claiming that Dr. Shinn committed medical malpractice that resulted in deformation of Nicholson s breasts. Nicholson also claimed that Dr. Shinn failed to provide or, alternatively, negligently provided postoperative care. Dr. Shinn answered by general denial and also asserted the affirmative defense that limitations had passed. In her motion for traditional summary judgment, Dr. Shinn argued that the two-year statute of limitations barred Nicholson s claims as a matter of law, see TEX. CIV. PRAC. & REM. CODE 74.251(a) (Vernon 2005), and that limitations were not tolled because Nicholson did not comply with the notice provision required by Section 74.051(a) of the Remedies Code, see TEX. CIV. PRAC. & REM. CODE 74.052(c). Dr. Shinn provided affidavit testimony that Nicholson 2
had her first post-operative appointment on March 17, 2004, but that Nicholson did not return for her second appointment scheduled for a few weeks later and, therefore, the last medical treatment provided to Nicholson was March 17, 2004. Dr. Shinn s affidavit also authenticated and provided a copy of a June 1, 2004 letter sent to her by Nicholson s counsel. In her response, Nicholson argued that uncertainty about the onset date for limitations created a fact issue that precluded summary judgment, that she had substantially complied with the notice and medical authorization requirements of the MLIA, and that the onset date for claims premised on postoperative treatment was within the two-year statute of limitations. Nicholson also argued that she was due a post-operative checkup by Dr. Shinn, but that the checkup was never scheduled, although requested by Nicholson up to and including June, 2004. Nicholson provided affidavit testimony to support that contention. Standard of Review We review summary judgments de novo and according to well-settled standards. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We resolve all doubts against the movant and view the evidence in the light that most favors the nonmovant. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In deciding whether a disputed issue of material fact issue exists, we take evidence favorable to 3
the nonmovant as true. Id. A defendant who moves for traditional summary judgment on the plaintiff s claims must conclusively disprove at least one element of each of the plaintiff s causes of action. Little v. Tex. Dep t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A defendant who moves for traditional summary judgment on an affirmative defense, however, as here, must conclusively establish all elements of that affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008); Shah, 67 S.W.3d at 842; Alpert v. Gerstner, 232 S.W.3d 117, 132 (Tex. App. Houston [1st Dist.] 2006, pet. denied). The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). Discussion I. Two-Year Statute of Limitations In her first point of error, Nicholson contends that Dr. Shinn failed to establish her affirmative defense that Nicholson s claims are barred by the two-year statute of limitations. Nicholson supports this contention by claiming (1) that Dr. Shinn did not establish when limitations began to run because her negligent postoperative care continued through 2004 and (2) that Nicholson established that limitations were 4
tolled. A. Onset Date for Limitations The two-year limitations period imposed by Section 74.251 of the Texas Civil Practice and Remedies Code is measured from one of three dates: (1) occurrence of the breach or tort, (2) date that the relevant course of treatment was completed, or (3) last date of the relevant hospitalization. TEX. CIV. PRAC. & REM. CODE 74.251(a); Shah, 67 S.W.3d at 842 43; Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987). A medical malpractice claimant may not choose from among these the measurement that most favors her case. Shah, 67 S.W.3d at 841. Nicholson claims that the trial court erred in granting summary judgment because a fact issue exists as to the onset date for the statute of limitations. Specifically, Nicholson argues that she was still under Dr. Shinn s care after the March 12, 2004 surgery and was anticipating follow-up visits that were never made due to scheduling problems. Thus, Nicholson argues that the statute of limitations should be extended to some unspecified time beyond the last date of treatment. To resolve Nicholson s issue, we must first determine whether the date of the alleged tort is ascertainable. Id.; Winston v. Peterek, 132 S.W.3d 204, 207 (Tex. App. Houston [14th Dist.] 2004, pet. denied). If the date is ascertainable, limitations begin to run on that date, and inquiries into second and third categories 5
of onset dates are not necessary. Shah, 67 S.W.3d at 841. Here, the dates of Shinn s alleged negligence are readily ascertainable. If the defendant committed the alleged tort on an ascertainable date, whether the plaintiff established a course of treatment is immaterial because limitations begins to run on the ascertainable date. Husain v. Khatib, 964 S.W.2d 918, 919. (Tex. 1998). If the date the doctor s alleged negligence took place can be ascertained, then there are no doubts to resolve and we must measure limitations from that date. Id. Nicholson sought a breast augmentation and other cosmetic surgery from Dr. Shinn in late 2003. Dr. Shinn performed the procedure in September 2003. Nicholson was not satisfied with the appearance of her breasts and obtained a second, corrective procedure, on March 12, 2004. Nicholson had her first post-operative appointment with Dr. Shinn on March 17, 2004. The record does not reflect subsequent appointments. Therefore, any negligence could only have occurred, at the latest, at the March 17, 2004 appointment. See Husain, 964 S.W.2d at 920 (citing Bala v. Maxwell, 909 S.W.2d 889, 891 92 (Tex. 1995)). Furthermore, it is immaterial whether Nicholson established a relevant course of treatment because the limitations begin to run on an ascertainable date March 17, 2004. Because the March 17, 2004 date is ascertainable, there is no fact issue regarding whether a subsequent course of treatment existed between Dr. Shinn and Nicholson. Moreover, even were we to assume that no ascertainable date existed in 6
the instant case, the Texas Supreme Court has held that while the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment. Rowntree v. Hunsucker, 833 S.W.2d 103, 105 06 (Tex. 1992) (quoting Nykorchuck v. Henriques, 577 N.E.2d 1026, 1029 (N.Y. 1991)). In other words, the scheduling difficulties for Nicholson s post-operative care do not constitute a course of treatment, therefore, regardless of whether Dr. Shinn refused to schedule further postoperative care or whether Nicholson failed to appear, Dr. Shinn could not have breached her duty after March 17, 2004 as she had no opportunity to perform followup care. For these reasons, we measure the two-year limitations period imposed by section 74.251by the occurrence of the alleged medical malpractice by Dr. Shinn. The last treatment date is ascertainable, namely the postoperative care provided on March 17, 2004. B. Notice and Tolling Limitations The two-year limitations period imposed by section 74.251 can be tolled to and including a period of 75 days if proper notice is given. TEX. CIV. PRAC. & REM. CODE 74.051(c), 74.251(a). Section 74.051(a) lists the notice requirements for a medical malpractice claim: 7
(a) Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim. The notice must be accompanied by the authorization form for release of protected health information as required under 74.052. 1 TEX. CIV. PRAC. & REM. CODE 74.051(a). Section 74.052 prescribes the Authorization Form for Release of Protected Health Information: (a) Notice of a health care claim under Section 74.051 must be accompanied by a medical authorization in the form specified by this section. Failure to provide this authorization along with the notice of health care claim shall abate all further proceedings against the physician or health care provider receiving the notice until 60 days following receipt by the physician or health care provider of the required authorization. TEX. CIV. PRAC. & REM. CODE 74.052(a). The purpose of the authorization form is to assist the defendant in facilitating the investigation of the plaintiff s health care claim and in facilitating the defense of any litigation arising out of the claim. TEX. CIV. PRAC. & REM. CODE 74.052(c). This provides potential defendants a 60-day pre-suit window to gather information, determine whether the claims have merit, and resolve the dispute without the excessive cost of litigation. Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983); In re Fontenot, 13 S.W.3d 111, 1 The malpractice statute was expanded in 2003 to include section 74.052, which prescribes the form of authorization. TEX. CIV. PRAC. & REM. CODE 74.052. 8
114 (Tex. App. Fort Worth 2000, no pet.) (citing De Checa v. Diagnostic Center Hosp., Inc., 852 S.W.2d 935, 938 (Tex. 1993)). As we have established, the critical date for limitations purposes is March 17, 2004. Nicholson gave notice of the claim on June 1, 2005, and filed suit on May 4, 2006. By sending proper notice of her claim, Nicholson would have stopped the running of the two-year limitations period for 75 days, at the end of which the statute resumes running. Husain, 964 S.W.2d at 919; De Checa, 852 S.W.2d at 937 38. Thus, the May 4, 2006 suit was timely assuming Nicholson provided proper notice. We conclude that the two-year limitations period was not tolled 75 days because proper notice was not given. Therefore, no fact issue exists and the trial court did not abuse its discretion in granting Dr. Shinn s motion for summary judgment. On June 1, 2005, Dr. Shinn received a notice letter from Nicholson s attorney. The June 1, 2005 notice letter was not accompanied by the medical authorization form required by statute. TEX. CIV. PRAC. & REM. CODE 74.051(a). On June 6, 2005, Nicholson sent Dr. Shinn a medical authorization release form. Dr. Shinn contends this document was defective in that it substantially deviated from the authorization required by TEX. CIV. PRAC. & REM. CODE 74.051 and contained in 74.052 in both form and substance. Nicholson replies that she served Dr. Shinn s insurance carrier on June 23, 2005 with the authorization form for release 9
of protected health information prescribed by section 74.052. However, because none of the three forms of notice and authorization provided on June 1, June 6, or June 23, 2005 comply with the mandatory provisions of sections 74.051 and 74.052, we hold that notice is not proper, and the statute of limitations was not tolled. TEX. CIV. PRAC. & REM. CODE 74.051 & 74.052. To resolve whether Nicholson provided proper notice, we must first determine if sections 74.051 and 74.052 are mandatory or directory. See Butler v. Taylor, 981 S.W.2d 742, 743 (Tex. App. Houston [1st Dist.] 1998, no pet.). To accomplish this, we look to Schepps v. Presbyterian Hospital of Dallas, in which the Supreme Court of Texas utilized principles of statutory construction to analyze the statutory predecessor of section 74.051(a) in order to determine whether the 60-day notice provision contained in the statute is mandatory or directory. Schepps, 652 S.W.2d at 936 38. Schepps set forth the general guidelines for statutory construction, noting that there is no absolute test. Id. at 936 (citing Chisholm v. Bewley Mills, 287 S.W.2d 943 (Tex. 1956)). Therefore, the fundamental rule is to ascertain and give effect to the legislative intent. Id. The word shall is generally deemed mandatory, but it is frequently held to be merely directory by looking at the Legislature s intent. Id. If the statutory provision goes to the essence of the thing to be done, it is mandatory, but if an element is only included for the purpose of promoting the proper, orderly and prompt conduct of business, [it is] generally regarded as [directory]. Id. In 10
Schepps, a plaintiff failed to give at least sixty days notice prior to filing suit under the Act. 652 S.W.2d at 935. After relying on legislative history to support the conclusion that the Legislature intended the Act s notice provision as a vehicle to encourage pre-suit negotiations, the Schepps court found the word shall to be mandatory, and held the sixty-day provision compulsory. Id. at 938. Violations of mandatory provisions can occasionally result in substantial compliance when they are regarded as directory because of their purpose. Id. For instance, in Butler v. Taylor, relied on by Nicholson, the appellant sent notice under the Act by express mail. 981 S.W.2d at 742 43. Although section 74.051(a) requires notice to be sent certified mail, return receipt requested, the Butler court found that the appellant had substantially complied with the notice requirement because the technicalities of the method of service are not crucial when the purposes of the notice statute have been satisfied. Id. at 743 44. Nicholson urges this Court that her substantial compliance with the statute was sufficient to toll the statute of limitations, citing both Butler and Schepps. We disagree. Butler holds that, while mandatory, sending notice via express mail over certified mail, required by the statute, does not disregard the purpose of the notice statute to encourage pre-suit negotiations. Butler, 981 S.W.2d at 743. On the contrary, failing to include a medical release authorization form belies the purpose of the notice statute. Similarly, while Schepps held that the Act s sixty-day-notice 11
period prior to filing suit is mandatory, the court permitted an abatement period of sixty days as a remedy when a plaintiff fails to give timely notice, reasoning that the legislature did not intend to bar prosecution completely in such instances. Schepps, 652 S.W.2d at 938. In the instant case, unlike the facts in Schepps and Butler, the notice filed by Nicholson was defective from the outset. Therefore, the trial court did not err in holding Nicholson s notice defective because such notice did not meet the mandatory statutory guidelines set out by sections 74.051(a) and 74.052. See id. The first letter of notice sent June 1, 2005 is clearly defective because it violates a mandatory provision section 74.051 requires that notice must be accompanied by the 74.052 medical release authorization form. As previously noted, because the purpose of 74.051 is to encourage pre-suit negotiations and avoid unnecessary litigation, failing to include the form does not result in substantial compliance. The two subsequent medical authorization forms, sent June 6 and June 23, 2005, are similarly defective because they also do not meet the mandatory statutory guidelines set out by sections 74.051(a) and 74.052. See id. The medical authorization release form Nicholson supplemented on June 6, 2005 deviated from the mandatory provisions of section 74.052. The medical authorization required must include a form authorizing the physician or other health care provider to obtain and disclose... the protected health information and a form for the patient to identify 12
her treating physicians for the past five years. TEX. CIV. PRAC. & REM. CODE 74.052(c). The June 6, 2005 release neglected to include information on Nicholson s physicians for the past five years, as directed by section 74.052(c). The medical authorization form served on Dr. Shinn s insurer on June 23, 2005 was similarly lacking. There, Nicholson also neglected to complete the section identifying her treating physicians or the section authorizing the physician or other health care provider to obtain and disclose her health care information. See id. By overlooking these two provisions on both the June 6, 2005 medical authorization letter and the June 23, 2005 authorization for release, Nicholson failed to substantially comply with sections 74.051 and 74.052. Nicholson s two forms of medical authorization did not comport with the Legislature s stated intent of encouraging pre-suit negotiations and avoiding unnecessary litigation. Specifically, Nicholson s failure to list her treating physicians for the past five years essentially rendered Nicholson s authorizations meaningless because such an omission discouraged defendants from undertaking an investigation to evaluate Nicholson s claim. Thus, both the June 6 and June 23 authorizations lacked crucial information necessary for the promotion of the proper, orderly and prompt conduct of business. Schepps, 652 S.W.2d at 936. Additionally, we note that Nicholson served the June 23, 2005 authorization form only on Dr. Shinn s insurance provider, and not on Dr. Shinn or her attorneys, 13
as required by section 74.052(a). Again, to determine whether the serving of notice on Dr. Shinn s insurance provider is equivalent to serving the notice on Dr. Shinn or counsel, we construe the statute in light of the legislature s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). The plain language expressly requires the claimant to give written notice of such claim... to each physician or health care provider. TEX. CIV. PRAC. & REM. CODE 74.051(a). When the plain language of a section requires the claimant to serve the defendant health care provider or his attorney, filing the report with the insurance carrier does not constitute proper notice. See Poland v. Ott, 278 S.W.3d 39, 42 44 (Tex. App. Houston [1st Dist.] 2008, pet. ref d); Quint v. Alexander, No. 03-04-00819-CV, 2005 WL 2805576, at *2 3 (Tex. App. Austin 2005, no pet.) (mem. op.). Thus, Nicholson s filing of the authorization form with Dr. Shinn s insurance provider did not satisfy the plain language of section 74.052(a) s notice requirement. For the foregoing reasons, the trial court did not err in granting appellee s motion for summary judgment because no fact issue exists as to whether the two-year statute of limitations should have been tolled for a period of 75 days. See TEX. CIV. PRAC. & REM. CODE 74.051(c), 74.251(a). Appellant s first point of error is overruled. 14
II. Adequate Time for Discovery In her second point of error, Nicholson contends that summary judgment was improper because the trial court granted the motion before Nicholson could conduct discovery. Nicholson also argues that a continuance should have been granted to permit discovery of possible negligence in Shinn s post-operative follow-up care. We will first examine Nicholson s argument that the trial court erroneously denied her motion for continuance. There are three relevant factors used in deciding whether the trial court abused its discretion in denying a ruling on a Rule 166a(g) motion for continuance. Laughlin v. Bergman, 962 S.W.2d 64, 65 (Tex. App. Houston [1st Dist.] 1997, writ denied). These factors include: (1) the length of time the case had been on file, (2) the materiality of the discovery sought, and (3) due diligence of counsel. Id. at 65 66; Patrick v. Howard, 904 S.W.2d 941, 946 (Tex. App. Austin 1995, no writ); Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 510 (Tex. App. Houston [1st Dist.] 1994, no writ). To resolve Nicholson s issue, we must look collectively at the length of time the case had been on file, the materiality of the discovery sought, and the due diligence of counsel. Laughlin, 962 S.W.2d at 65 66; Patrick, 904 S.W.2d at 946; Levinthal, 902 S.W.2d at 510. In Levinthal v. Kelsey-Seybold Clinic, [t]he case had been on file for only three months at the time summary judgment was granted. Id. 15
at 510. While the plaintiff was the party moving for a continuance, the Court found a plaintiff has the right to engage in necessary discovery before summary judgment is granted because of the importance of materiality and the belief that discovery 2 would prove the co-conspiracy. 902 S.W.2d at 511. The plaintiff was able to prove due diligence in that [t]here was nothing more [he] could have done to obtain the discovery materials prior to the summary judgment hearing. Id. at 512. It was not the three-month period alone, but also the materiality of the discovery sought and the due diligence employed by the plaintiff, that the Court used to determine that the trial court had abused its discretion by refusing to continue the discovery. Id. The materiality of the information is a primary factor in determining whether the denial of the motion for continuance of discovery is proper. See Laughlin, 962 S.W.2d at 66. In Laughlin v. Bergman, the Court held the ability to depose the defendant and review files is absolutely critical to a legal malpractice case. Id. Making numerous attempts to schedule depositions while the defendants are continuously unavailable, constitutes due diligence. Id. Accordingly, Laughlin ruled that it was an abuse of discretion for the trial court to have denied the motion for 2 A significant distinction exists between a plaintiff filing a motion for summary judgment and a defendant filing the motion. Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 95-96 (Tex. App. Houston [1st Dist.] 1989, writ denied). Courts can presume a plaintiff has investigated his own case[,] but courts cannot make the same assumption about a defendant. Id. 16
continuance. Id. Nicholson asserts that the trial court should have granted [her] motion for continuance because the case had been on file for only five... months when [Dr. Shinn] filed [her] summary judgment motion and no discovery had been completed although discovery was sent by [Nicholson]. While Levinthal indicates that three months on file can be ruled too brief a time to allow for summary judgment, it is not a bright-line rule and is factored in with the materiality of the requested information and due diligence of the requesting party s counsel. The instant case is distinguishable from Levinthal. Dr. Shinn filed her motion for summary judgment on September 5, 2006, more than five months after Nicholson filed the case on May 4, 2006. This is two months longer than the Levinthal case. Additionally, Nicholson asserts the trial court erred in granting summary judgment because Dr. Shinn did not establish her affirmative defense of limitations bar as a matter of law. We disagree because, even if Nicholson is correct that the discovery rule applies, and even if the evidence raises a fact issue about the course of treatment past the last surgical treatment date, the fact remains that the last possible moment the alleged malpractice could have occurred was March 17, 2004. Nicholson did not file suit until May 4, 2006, more than two years after her discovery of the alleged negligence. Nicholson s suit against Dr. Shinn is therefore barred by the twoyear statute of limitations as a matter of law. Unlike Levinthal, no amount of 17
discovery would change this limitations defense; the information sought to be discoverable was immaterial. Nicholson contends that Dr. Shinn s answers to... discovery were critical on the issue of whether [Nicholson] continued a course of treatment past the last surgical treatment date. However, unlike Laughlin v. Bergman, which held the ability to review files absolutely critical to a legal malpractice case, the information Nicholson seeks is immaterial because, even if there was a negligent course of treatment, it would not change the last ascertainable date of March, 17, 2004. Even if a further date was discovered, March 17, 2004 begins the statute of limitations because it is the last treatment between Dr. Shinn and Nicholson. When discovery is immaterial to the issue presented in a motion for summary judgment and, as such, will not raise a fact issue concerning a defendant s affirmative defense, it is not error for a trial court to render summary judgment without allowing discovery to proceed. See Patrick, 904 S.W.2d at 946. Res judicata entitles a defendant to summary judgment as a matter of law when discovery would not raise a fact issue concerning the affirmative defense. Goggin v. Grimes, 969 S.W.2d 135, 137-38 (Tex. App. Houston [14th Dist.] 1998, no pet.). In Patrick v. Howard, the plaintiff claimed that the trial court erred in denying his motion for continuance because discovery was material [and] would yield evidence to support the applicability of the discovery rule and fraudulent 18
concealment. 904 S.W.2d at 946. However, the court concluded that no additional amount of discovery could add to the plaintiff s argument because as a matter of law, neither of [the] doctrines applie[d]. Id. Similarly, we conclude that the time for discovery in the instant case was adequate and the three relevant factors indicate no abuse of discretion. Like Patrick, no additional amount of evidence could add to the appellant s argument, and therefore, discovery was immaterial to the issue presented in the motion for summary judgment. In examining the five-month time period that the case was on file, the immateriality of the claim, and the fact that there were no allegations of failure of due diligence by counsel, we hold that time for discovery was adequate and the trial court did not abuse its discretion in granting summary judgment. Appellant s second point of error is overruled. III. Nicholson s Affidavit In a cross-point of error, Dr. Shinn objects to Nicholson s affidavit alleging that Dr. Shinn s office failed to schedule follow-up care. Specifically, Dr. Shinn asserts that Nicholson s affidavit is: (1) conclusory, (2) based upon the beliefs and opinions of Nicholson and not on personal knowledge, (3) not direct and unequivocal, (4) not free from contradictions, (5) not readily controvertible, and (6) relies on hearsay statements. 19
Based on our disposition of appellant s second point of error, it is unnecessary to examine whether Nicholson s affidavit constitutes competent summary judgment proof. Therefore, we decline to do so. Conclusion For the foregoing reasons, we affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Alcala and Hanks. 20